US v. Ira Thorpe

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00407-WO-1 Copies to all parties and the district court/agency. [1000033263].. [16-4577]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4577

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
IRA LEE THORPE,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:15-cr-00407-WO-1)

Submitted:

February 9, 2017

Decided:

March 1, 2017

Before TRAXLER, KEENAN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

George E. Crump, III, Rockingham, North Carolina, for Appellant.
Michael
A.
DeFranco,
Assistant
United
States
Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ira

Lee

Thorpe

pled

guilty,

pursuant

to

a

written

plea

agreement, to one count of being a felon in possession of a
firearm,

in

violation

of

18

U.S.C.

§§

(2012).

The district court sentenced Thorpe to 24 months and 1

day of imprisonment, and he now appeals.

922(g)(1),

924(a)(2)

Appellate counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), questioning
unreasonable
effective

whether

because

right

of

the

Thorpe’s
district

allocution.”

sentence
court

Thorpe

is

procedurally

denied
has

Thorpe

filed

a

“an

pro

se

supplemental brief contending that his conviction violates both
the Second Amendment as applied to him and due process.

We

affirm.
Counsel
allocution”
Thorpe

argues
was

during

that

violated

allocution

Thorpe’s

when

the

and

then

answers when imposing sentence.

“effective

district

right

court

penalized

to

questioned

Thorpe

for

his

Because Thorpe did not raise

this objection in the district court, we review for plain error.
See

United

2007).

States

v.

Muhammad,

478

F.3d

247,

249

(4th

Cir.

To establish plain error, Thorpe must demonstrate that

(1) the district court committed an error; (2) the error was
plain;

(3) the

error

affected

his

substantial

rights;

and

(4) the error “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.”
2

Puckett v. United

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States,

556

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U.S.

129,

135

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(2009)

(internal

quotation

marks

omitted).
“Before imposing sentence, the court must . . . address the
defendant personally in order to permit the defendant to speak
or present any information to mitigate the sentence.”
Crim. P. 32(i)(4)(A)(ii).

Fed. R.

A court may interrupt a defendant’s

allocution to ask questions so long as there is no indication
that the court is attempting to terminate the allocution and the
defendant
factors.

is

given

ample

opportunity

to

speak

to

mitigating

See United States v. Covington, 681 F.3d 908, 910 (7th

Cir. 2012); cf. United States v. Li, 115 F.3d 125, 133-34 (2d
Cir. 1997) (holding that defendant was denied opportunity for
“meaningful” allocution).

Furthermore, a court may increase a

defendant’s sentence based on comments made during allocution if
the comments are relevant to the 18 U.S.C. § 3553(a) (2012)
analysis.

See United States v. Smith, 424 F.3d 992, 1016-17

(9th Cir. 2005); United States v. Burgos-Andujar, 275 F.3d 23,
30-31 (1st Cir. 2001); Li, 115 F.3d at 134-35.
Although

the

district

court

often

interrupted

Thorpe’s

allocution to question him and referenced Thorpe’s answers in
setting the downward variance sentence, we discern no error.
The

district

responses

court

could

be

properly
viewed

noted

as

that

minimizing

some
his

of

Thorpe’s

acceptance

responsibility and others were of questionable veracity.
3

of
We

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conclude

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that

credibility

the

of

district

Thorpe’s

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court
comments

permissibly
during

assessed

allocution

the
and

appropriately considered those statements in fashioning Thorpe’s
sentence under § 3553(a).
Thorpe also argues that his conviction violates the Second
Amendment as applied to him because his felony drug convictions
are over 20 years old and he does not have a history of violent
conduct.
plea.

Thorpe’s contention is likely waived by his guilty

See United States v. Fitzgerald, 820 F.3d 107, 110 (4th

Cir. 2016) (recognizing that “when a defendant pleads guilty, he
waives

all

nonjurisdictional

defects

in

the

proceedings

conducted prior to entry of the plea” (alterations and internal
quotation marks omitted)); United States v. Seay, 620 F.3d 919,
922 n.3 (8th Cir. 2010) (holding as-applied Second Amendment
challenge

to

§

922(g)

was

not

jurisdictional

claim);

United

States v. Fox, 573 F.3d 1050, 1052 n.1 (10th Cir. 2009) (same).
Even

assuming

Thorpe’s

claim

survives

conclude that the claim lacks merit.
the

possibility

of

a

successful

his

guilty

plea,

we

Although we have left open
as-applied

challenge

to

§ 922(g)(1), United States v. Moore, 666 F.3d 313, 320 (4th Cir.
2012),

given

Thorpe’s

criminal

history,

he

“law-abiding responsible citizen requirement.”

cannot

meet

the

United States v.

Pruess, 703 F.3d 242, 246 (4th Cir. 2012) (internal quotation
marks omitted).
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Lastly, Thorpe avers that his conviction violates his “due
process reliance interests.”

When Thorpe pled guilty in North

Carolina state court to the felony drug offenses that served as
the predicates for the instant conviction, state law prohibited
Thorpe from possessing firearms for five years after his release
from

state

custody.

Before

threshold,

the

North

restoration

of

rights

(1995),

permanently

to

Thorpe

Carolina

General

statute,
ban

reached

N.C.

Assembly
Gen.

convicted

the

amended

Stat.

felons

five-year

§

from

the

14-415.1

possessing

certain firearms.
Like Thorpe’s Second Amendment claim, his due process claim
was likely waived when he pled guilty.
at 110.

See Fitzgerald, 820 F.3d

Notwithstanding, we conclude that Thorpe’s argument

fails on the merits.

Because Thorpe’s right to possess firearms

was

his

never

restored,

predicates

under

§

(2012).

Furthermore,

state

922(g)(1).

court
See

Thorpe

convictions
18

cites

U.S.C.

no

are

§

authority

proper

921(a)(20)
for

the

proposition that a felon retains a due process interest in the
right

to

Amendment.

bear

arms

under

either

the

Second

or

Fourteenth

See Johnston v. State, 735 S.E.2d 859, 876 (N.C. Ct.

App. 2012) (“No federal or State case has held that a convicted
felon

enjoys

Fourteenth

a

liberty

Amendment.”).

interest
For

process claim fails.
5

to

these

bear

arms

reasons,

under

the

Thorpe’s

due

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accordance

with

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Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious issues for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires that counsel inform Thorpe, in writing, of
the right to petition the Supreme Court of the United States for
further review.

If Thorpe requests that a petition be filed,

but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation.

Counsel’s motion must state that a copy thereof

was served on Thorpe.
We dispense with oral argument because the facts and legal
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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